Commercial Airline Crash: Investigation Procedure and Responsibility of State

Air transport is the most recent mode of transport and a gift of the 20th century to the world. The two World Wars provided the impetus for the development of air transport in almost all the countries of the world. It is one of the safest means of travel[1] but is also fragile in nature and so, it is imperative for aircraft manufacturers to ensure that manufacturing is of the highest standard in order to ensure safety of the people. In case of any unfortunate incident or air crash, an investigation is conducted in accordance with guidelines laid down by the International Civil Aviation Organization (ICAO) Rules[2] and in such cases, Annex 13 is followed. Non-compliance with these rules will be a violation of international law and in such an industry it will also constitute a breach of fundamental human rights, especially in a world where air travel is considered to be one of the fastest, most efficient and safest forms of travel. In case of failure to adhere to these principles and guidelines, an investigation may be left incomplete and finality may never be established to ascertain the root-cause of an issue and implement preventive measures.

The Rules set by ICAO are explained in Annex 13[3] and are titled “Aircraft Accident and Investigation”. They provide a uniform procedure used by states to promptly make available the report of aircraft accident investigations and inquiries, particularly when related to a large modern transport aircraft. The main purpose of these rules is not to establish blame but to conduct an investigation to prevent future accidents and disasters. This objective has been defined in Section 3.1 of the rules:

“OBJECTIVE OF THE INVESTIGATION The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.”

Under Chapter 1 of these Rules, the role of states has been defined in the following manner:

State of Design – The state having jurisdiction over the organization responsible for the design of the type of aircraft.

State of Manufacture – The state having jurisdiction over the organization responsible for the final assembly of the aircraft.

State of Occurrence – The state in the territory of which an accident or incident occurs.

State of the Operator – The state in which the operator’s principal place of business is located or, if there is no such place of business, the operator’s permanent residence.

State of Registry – The state on whose register the aircraft is entered.

In addition, contracting states also have an obligation to ensure that they have a safety program and that their civil aviation practice is in compliance with the standard set by these Rules. This requirement has been mentioned in Section 3.2 of the Rules:

STATE SAFETY PROGRAMME

3.2 States shall establish a State safety programme, in order to achieve an acceptable level of safety in civil aviation.

These Rules provide a thorough procedure with regards to how an investigation is to be conducted, what the responsibility of the states involved is, how the evidence and the material is to be preserved, investigated and studied, and finally, what the investigation report should entail and what preventive and/or safety measures should be taken.

The investigation begins with a preliminary requirement mentioned in Chapter 3 of the Rules, which is to ensure that after an air crash, the remains of the crash (i.e. the evidence) are preserved and kept in safe custody. This responsibility lies with the State of Occurrence i.e. the state in which the air crash occurred. This has been mentioned in Section 3.3 of the ICAORules:

RESPONSIBILITY OF THE STATE OF OCCURRENCE

3.3 The State of Occurrence shall take all reasonable measures to protect the evidence and to maintain safe custody of the aircraft and its contents for such a period as may be necessary for the purposes of an investigation. Protection of evidence shall include the preservation, by photographic or other means, of any evidence which might be removed, effaced, lost or destroyed. Safe custody shall include protection against further damage, access by unauthorized persons, pilfering and deterioration.

It is also possible for the State of Registry, Manufacture, Operator and/or Design to make a request to the State of Occurrence to ensure safety of the material and the debris. It is the responsibility of the State of Occurrence to take all reasonable steps to ensure that the material is free from any additional destruction caused by any means, man-made or natural. It should be noted that this request is usually made when the crash site is located or the crash itself happens at a vulnerable location or in a city/country where environmental conditions may hinder the investigation and cause additional damage to the evidence or debris. Section 3.4 of the ICAO states the following:

3.4 If a request is received from the State of Registry, the State of the Operator, the State of Design or the State of Manufacture that the aircraft, its contents, and any other evidence remain undisturbed pending inspection by an accredited representative of the requesting State, the State of Occurrence shall take all necessary steps to comply with such request, so far as this is reasonably practicable and compatible with the proper conduct of the investigation; provided that the aircraft may be moved to the extent necessary to extricate persons, animals, mail and valuables, to prevent destruction by fire or other causes, or to eliminate any danger or obstruction to air navigation, to other transport or to the public, and provided that it does not result in undue delay in returning the aircraft to service where this is practicable.

Once all necessary steps have been taken to preserve the crash material, the investigation begins. The next step is a notification procedure as per Chapter 4 of the Rules.

Chapter 4 of the Rules directs the State of Occurrence to send a notification to the State of Registry, Design, Operator and Manufacture, informing them of the accident along with specific information related to the air crash, with minimum delay. In addition to these requirements, a notification may also be sent to the International Civil Aviation Organization if the aircraft has a maximum mass of over 2,250 kg or if the aircraft involved is a turbo-jet. The information required in the notification is as follows:[4]

a) for accidents, the identifying abbreviation is ACCID, for serious incidents INCID;b) manufacturer, model, nationality, registration marks and serial number of the aircraft;c) name of the owner, operator and hirer, if any, of the aircraft;d) qualification of the pilot-in-command and the nationality of crew and passengers;e) date and time (local time or Universal Time Coordinated-UTC) of the accident or serious incident;f) last point of departure and point of intended landing of the aircraft;g) position of the aircraft with reference to some easily defined geographical point and latitude and longitude;h) number of crew members and passengers; aboard, killed and seriously injured; others, killed and seriously injured;i) description of the accident or serious incident and the extent of damage to the aircraft so far known;j) an indication as to what extent the investigation will be conducted or is proposed to be delegated by the State of Occurrence;k) physical characteristics of the accident or serious incident area, as well as an indication of access difficulties or special requirements to reach the site;l) identification of the originating authority and means to contact the investigator-in-charge and the accident investigation authority of the State of Occurrence at any time; andm) presence and description of dangerous goods on board the aircraft.

It may be possible that at the time of the incident, some of the information from the list above may not be available and as such, it is the responsibility of the State of Occurrence to send the omitted information as soon as it has been made available. The states receiving this information should acknowledge the notification and provide whatever information they have in relation to the aircraft, the crew on board and any technical information that may assist the State of Occurrence with the investigation. Once all the contracting states have received the notification, the investigation begins.[5]

The investigation is usually conducted by the state where the air crash has occurred, however, that state also has the prerogative to delegate the investigation to another state or a regional accident investigation organization by mutual consent or agreement. The reason behind this may be that the State of Occurrence lacks the necessary expertise or equipment or services to conduct such an investigation. The method and conduct of this investigation have been provided in the Manual of Aircraft Accident and Incident Investigation[6] but for the purposes of this research, I will only focus on the procedural requirements of the State of Occurrence and the contracting states.

The State of Occurrence has full authority over the investigation, unless it has been delegated to another state during which all reasonable assistance is to be provided, and if a local authority has been appointed then the state may direct as it deems appropriate. The state shall have independence in the conduct of the investigation and have unrestricted authority over its conduct, consistent with the provisions of this Annex. The investigation shall normally include:

a) the gathering, recording and analysis of all relevant information on that accident or incident;b) if appropriate, the issuance of safety recommendations;c) if possible, the determination of the causes and/or contributing factors; andd) the completion of the final report.

Where feasible, the scene of the accident is also to be visited, the wreckage examined and statements taken from witnesses. The extent of the investigation and the procedure to be followed in carrying out such an investigation is to be determined by the accident investigation authority, depending on the lessons it expects to draw from the investigation for the improvement of safety.

As mentioned above, the purpose of this report or investigation is not to apportion liability. Any liability arising out of the report is separate from judicial proceedings.

The Investigator-in-Charge

An investigator-in-charge is also appointed by the State of Occurrence to lead the investigation. The investigator is allowed unhampered access to all material including but not limited to the wreckage, site, material recovered including the flight data recorder and cockpit voice recorder and all material reasonably necessary for the purposes of the investigation.

It is also pertinent to mention that many a times the public at large has an objection to the non-disclosure of the flight data recorder or cockpit voice recorder in order for them to ascertain why the crash happened. It is important to highlight this very fact that these Rules prevent the disclosure of certain material in addition to the recordings because the disclosure of such material may have a significant domestic and/or international impact. Such material and recordings are only utilized for the purposes of the investigation and used only in flight training for safety. In addition to the recordings, the following information is also kept confidential:[7]

a) all statements taken from persons by the investigation authorities in the course of their investigation;b) all communications between persons having been involved in the operation of the aircraft;c) medical or private information regarding persons involved in the accident or incident;d) cockpit voice recordings and transcripts from such recordings;e) recordings and transcriptions of recordings from air traffic control units;f) cockpit airborne image recordings and any part or transcripts from such recordings; andg) opinions expressed in the analysis of information, including flight recorder information.

In addition to the appointment of an investigator-in-charge, the contracting states also have a right to appoint their own accredited representatives to assist with the investigation. Furthermore, the State of Registry and the State of Operator may also appoint an adviser to assist their accredited representatives. The State of Design and the State of Manufacture shall also be entitled to appoint one or more advisers, proposed by the organizations responsible for the design of type and the final assembly of the aircraft, to assist their accredited representatives. All personnel are entitled to participate in the investigation at the same length as that of the investigator-in-charge although their participation will remain under the investigator’s control and advice. Once the personnel have attended to and examined the evidence and material of the wreckage, they are obligated to inform their respective states of their findings and assessment, however, sensitive information may only be given with the consent of the state conducting the investigation. These Rules also allow the appointment of an expert by that state which has a special interest in the crash by virtue of, for example, the fatalities involved or any government or high-profile individuals who were a part of the crash, to visit the site of the crash, examine and read the available evidence and be entitled to a copy of the final report.

Once all necessary findings have been made, evidence examined, recordings heard and information gathered, a final report is prepared which is submitted to all contracting states and states which participated in the investigation.

Final Report

The format of this report has been given in the Appendix[8] of the Rules. However, the report may be adjusted with regards to the circumstances of each case. The final report once made and submitted to the contracting states should not be circulated elsewhere unless it is with the express consent of the state which conducted the investigation. Once this report is prepared and sent to the contracting states, the state conducting the investigation requests for comments on the report within sixty (60) days. These comments may be sent in the form of amendments or additions to the report which has been prepared. It should also be noted that these comments are almost always made by individuals who have submitted their preliminary report while working alongside the state conducting the investigation. This is to ensure that all amendments or additions are authentic with reference to primary evidence based on facts and findings as opposed to reporting. If any comments are received, they are incorporated in the final report after which the completed version is then sent to the following:

a) the state that instituted the investigation;b) the State of Registry;c) the State of the Operator;d) the State of Design;e) the State of Manufacture;f) any state that participated in the investigation;g) any state having suffered fatalities or serious injuries to its citizens; andh) any state that provided relevant information, significant facilities or experts.

In the interest of accident prevention, the state conducting the investigation of an accident or incident shall make the report publicly available as soon as possible and, if possible, within twelve (12) months. If the report cannot be made publicly available within twelve months, the state conducting the investigation shall make an interim statement publicly available on each anniversary of the occurrence, detailing the progress of the investigation and any safety issues raised. When the state that has conducted an investigation into an accident or an incident involving an aircraft of a maximum mass of over 5,700 kg and has released the report, that state has to send to the International Civil Aviation Organization a copy of that report.

Safety Recommendations

A state conducting the investigation of accidents or incidents shall address, when appropriate, any safety recommendations arising out of its investigations, in a dated transmittal correspondence to accident investigation authorities of the other state(s) concerned and, when ICAO documents are involved, to ICAO. A state that receives safety recommendations shall inform the proposing state, within ninety (90) days of the date of the transmittal correspondence, of the preventive action taken or under consideration, or the reasons why no action will be taken.